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Long-Running Quest to Develop Moshup Trail Land Denied Again

The Aquinnah zoning board of appeals this week denied two variances for an Aquinnah property owner who wants to build a bridge or culverts across land he owns off Moshup Trail. James Decoulos, a Cambridge engineer, has been trying to win the right to build a house on the two-plus-acre property for 14 years. The property is mostly wetland, and a bridge is needed to reach the building site on the property. Late last year the town planning board denied a special permit for Mr. Decoulos to build on the land, finding that the lot lacks adequate frontage under new zoning rules adopted by the town. That decision is the subject of an appeal in the Massachusetts Land Court.

This fall Mr. Decoulos applied to the town zoning board of appeals for variances from the zoning bylaws: one for relief from a 30-foot setback requirement and the other for relief from a 200-foot frontage requirement. He wants to reduce the setback from 30 feet to three and the frontage from 200 feet to 40, in order to build his bridge.

Three public hearing sessions were held. After the first hearing the board consulted with their town counsel, Ronald H. Rappaport.

At a second public hearing early this month, zoning board chairman James Vercruysse said the variances were too extreme for him to support.

“These requests vary so significantly from the intent of the bylaws that I just can’t see approving this even with conditions,” Mr. Vercruysse said. “I wish there was another way to look at it but I don’t see another.”

At the 2011 annual town meeting Aquinnah voters adopted new zoning rules requiring 200 feet of frontage for building lots. The bylaw was later incorporated into the townwide district of critical planning concern (DCPC) through the Martha’s Vineyard Commission.

There were questions about how Mr. Decoulos was proposing to create his frontage through the use of an easement. Mr. Vercruysse said he believed frontage could only be created in a subdivision plan, and simply drawing a line across the map and calling it frontage would not suffice. Board member Kathy Newman agreed.

“If you create a road across a driveway, that’s your own access to whatever part you want on the property, but it’s not considered frontage to the property,” she said. “There’s easement and there’s frontage, I don’t believe [they] are synonymous.”

But Mr. Decoulos said his application was no different from others in town.

“We’re extending a private way, we’re following what everyone else has done in this town,” he said. “We’re not doing anything unusual. We’re doing what everyone else has done.”

In an email sent before the meeting, Mr. Rappaport told the board that it had no authority to vary the requirements for vacant lots within the DCPC. He said the board does have the ability to hand down conditions if the board found the lot has unusual soil conditions, topographical conditions or hardship was demonstrated.

Mr. Vercruysse said he did not find the lot meets the soil and topography requirements.

“I feel really strongly that these requirements deviate severely from the intent of the bylaw,” he said. “I can see [the argument for] hardship. Jim’s been going through a lot of legal expense and frustration and change in the bylaws over this time period. But to me that isn’t enough to so severely go away from what we as a town voted on the town floor, argued and debated.”

Mr. Decoulos pressed the hardship issue.

“Someone is being denied the right to get to their property,” he said. “It’s been 14 years, don’t you think I’ve tried every other alternative? I can assure you for the record that I have. I’m not here because I’ve been lazy and haven’t made an effort to seek alternative access.”

Mr. Vercruysse acknowledged the history but said: “What’s before us are two requests that are severe in my opinion.”

Board member Peter Ives suggested the variances were the applicant’s only option.

“It’s the only way he can get to his piece of land,” Mr. Ives said. “It looks like he’s looked into [all of] them over 14 years and this is the only way he can get to his lot. The easement was created to get to those lots.”

He made a motion to approve both variances with the condition that only a three-bedroom home could be allowed on the lot, but the motion failed.

Board member Isaac Taylor addressed the environmental impacts of building a bridge or culverts across a wetland, and raised concern about the potential for the development of seven more lots.

“This zoning area we’re talking about through a wetland would be severely impacted, and incredibly impacted if in the future this may be a subdivision up there where there are many, many cars traveling over a relatively sensitive area,” he said. “I think that is what is going on here.”

Mr. Decoulos argued the bridge and culverts would in fact mitigate the environmental impact, and further expressed his frustration.

“I see a town acting vigorously to put up any roadblock they can to prevent us from putting up a three-bedroom house,” he said.

Mrs. Newman took a different view.

“I do feel badly about the hardship but I also feel very strongly with something as large as this that goes with the land and with the possibility of the impact that this can have,” she said . . . we’re not voting on something that’s a bit amorphous. The facts we have now and what the possibilities are, I don’t feel comfortable approving it.”

At a third session held on Monday this week the board voted 3 to 1 with one abstenstion to deny the variances. Mr. Vercruysse, Mr. Taylor and Mrs. Newman voted no; Mr. Ives voted yes and Beverly Wright abstained.